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Marsha Scaggs, Oa-0866 v. Rhoda Winstead

July 18, 2011

MARSHA SCAGGS, OA-0866, PETITIONER,
v.
RHODA WINSTEAD, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Mitchell, M.J.:

MEMORANDUM and ORDER

Marsha Scaggs an inmate at the State Correctional Institution Cambridge Springs has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Scaggs is presently serving a life sentence imposed following her conviction, by a jury, of 2nd degree homicide, conspiracy, and firearms violations at No. CP-37-CR-755-1987 in the Court of Common Pleas of Lawrence County, Pennsylvania. This sentence was imposed on July 12, 1989.*fn1 The history of this prosecution is set forth in the October 29, 2009 Memorandum of the Superior Court, quoting the trial court, which is appended to the petition:

Following a jury trial[,] [Scaggs] was found guilty of Murder in the second degree, Kidnapping, Carrying a Firearm without a License, and Criminal Conspiracy.

On July 12, 1989, the trial court sentenced [Scaggs] to serve life imprisonment for the murder conviction and a consecutive sentence of two to five years imprisonment for the conspiracy conviction, and two to four years imprisonment for the firearms offense as modified on July 26, 1989). [Scaggs's] subsequent appeal to the Superior Court was affirmed. [Scaggs] then filed a Petition for Allowance of Appeal to the Pennsylvania Supreme, which denied [Scaggs's][P]etition [on] January 3, 1991.

[Scaggs], acting pro se, filed a PCRA [P]etition on January 2, 1992, and the PCRA Court appointed counsel . to represent [Scaggs].. [O]n July 17, 1992, counsel filed a motion to withdraw and a "no merit" letter with the Court. On July 24, 1993, the PCRA Court . found that the [P]etition lacked merit [and] grant[ed] counsel leave to withdraw.. [O]n February 3, 1993, the PCRA Court granted [Scaggs] leave to proceed pro se..

From that point forward, . [Scaggs] acting pro se, engaged in periodic correspondence with the PCRA Court until February 25, 2005, at which time she filed a petition for assignment of counsel. On the same date, the PCRA Court appointed Dennis Elisco, Esquire, to represent [Scaggs}. Subsequently, on September 9, 2005, [Scaggs] filed . [an] "Amendment for Withdrawal of Counsel Inter Alia Ineffective Assistance of Counsel," seeking to amend her prior petition to allege ineffective assistance on the part of Attorney Elisco [and] alleging that he had not notified her of his appointment [as] counsel. [Scaggs] acting pro se, filed a petition captioned "Amended Post Conviction Relief Act." Attorney Elisco filed a petition to withdraw as counsel and on January 27, 2006, the PCRA Court granted Attorney Elisco's petition to withdraw and appointed current counsel to represent [Scaggs].

On July 13, 2006, the Commonwealth filed a motion to dismiss the amended PCRA petition. The PCRA Court held a hearing on the petition addressing only the procedural posture of the petition and whether the Court should dismiss it as untimely. The PCRA Court dismissed the petition on the basis that [it] was time barred. [Scaggs] filed an appeal with the Superior Court ., [which] held that [Scagg's] Petition was not time-barred and remanded the matter to the PCRA court to proceed further with the litigation on [Scagg's] petition.

After hearing argument from counsel, the PCRA Court denied Scagg's Petition on December 11, 2008. Scaggs then filed this timely appeal.

Scaggs raises the following issues for our review:

1. Did trial counsel, and subsequently appointed counsel, provide ineffective assistance in representing [Scaggs] at the trial court level, the appellate level, and during prior Petitions for Post-Conviction Relief?

2. Should the trial court have charged the jury on the offenses of both voluntary manslaughter and involuntary manslaughter?*fn2

On October 29, 2009, the denial of post-conviction relief was affirmed.

Neither the docket of the Superior Court (2107 WDA 2008) nor the Pennsylvania Supreme Court (13WM 2010) disclose that the petitioner sought timely leave to seek relief in the latter Court. Rather, the Supreme Court docket reflects that on February 4, 2010, Scaggs filed a petition for leave to file an application for ...


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